111 510 510 libonline@riphah.edu.pk Contact

In search of true representation

On June 8, 2012, the Supreme Court of Pakistan in its judgement in the case of Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v Federation of Pakistan and 2 others P L D 2012 Supreme Court 681 held’, “The Election Commission is empowered to frame rules to ensure that the elections are conducted justly, fairly, honestly and in accordance with law and that corrupt practices are guarded against. There is unanimity of views on various suggested courses of action. Therefore, we direct the Election Commission to frame rules and issue instructions to provide legal sanction to these measures and implement the same to achieve the ultimate objective of fair, free, just and honest election.”

In these pro bono [public interest litigation] petitions, filed under Article 184(3) of the Constitution by some political parties and representatives of civil society, important questions relating to electioneering and representation were raised. Some important prayers were:

a. the prevailing electioneering practices involving wealth, power and influence are against the mandate of the Constitution regarding free, fair, just and honest elections on a level playing field and need to be remedied;

b. there cannot be a true and honest implementation of Article 218(3) if the current electioneering practices are not remedied in accordance with the mandate of the Constitution;

c. the Election Commission should make rules and do other necessary acts for implementation of the principles and mandate of the Constitution, in particular regarding:-

(i) matters relating to election expenses.

(ii) maintenance of separate bank accounts by candidates and political parties with a proper audit of expenses incurred therefrom.

(iii) regulation of election campaign activities in the context of expenses and in light of the principles laid down by this Court as regards the purpose of elections and the purpose of an election campaign.

(iv) appointment of Election Tribunals and prescription of their procedure in order to ensure that election disputes are decided expeditiously (Sections 57 and 62 of Representation of People’s Act).

(v) A complete ban on all modes of canvassing in the 48-hour period prior to polls including ban on election camps of candidates as well as removal of all hoardings, posters and banners.

(vi) Ban on private transport on election day except in respect of the disabled with prior permission and through a procedure devised for this purpose and also to requisition government transport, if necessary, for this purpose as well as increase in the number of polling under a rational formula sections to enable voters to walk to polls.

(vii) Supply of voting information to voters through the assistance of NADRA.

(viii) Improve voter awareness especially in regard to confidentiality and the procedure of voting.

(ix) Insistence by the Commission for proper disclosure regarding compliance of Section 8 of the Political Parties Order 2002.

Minto argued that since right to form a political party includes the right to participate in free and fair election, “it necessarily implies that every person and every group in society can genuinely take part in the process of elections, as voter and candidate, without constraint, coercion and subjugation”. Consequently, any unconstitutional curtailment of their right to participate, and to form government, is tantamount to an abridgement of their right under Article 17(2) of the Constitution. Secondly, a combined reading of Article 17(2) and Article 25 of the Constitution mandates a ‘level playing field’ for electioneering purposes. The petitioners argue that the impugned practices, and broadly speaking, the existing political culture negates Article 51(6)(a), which mandates that members shall be elected by a ‘free’, and ‘fair’ vote ‘in accordance with the law’ because these practices do not permit the vote cast to be a ‘free vote’, as mandated by Article 106(3)(a) either. The petitioners identified the following specific practices that they believed violate the Constitution and Representation of People’s Act, 1976:

(i) Jalsa or political Rally and Jaloos or procession

(ii) Banners/posters/billboards/stickers

(iii) Use of loudspeakers

(iv) Car rallies Pamphleteering

(v) Setting up Camps

(vi) Newspaper, TV or radio advertisements, press coverage and programs and surveys

The above practices, according to the petitioners, are carried out in blatant disregard of provisions of the Representation of People’s Act, 1976, namely, sections 48, 49 and 84. The petitioners specifically raised the point that certain provisions of Representation of People’s Act, 1976 create a political arena that is structurally designed to guarantee the success of only the wealthier political parties and, by necessary implication, destroy the petitioners’ prospects of success in the election.

The petitioners challenged the vires of section 49 of Representation of People’s Act, 1976 on the ground that the permissible ceiling of election expenses, Rs 1.5 million for a National Assembly seat and Rs 1 million for a Provincial Assembly seat. These create an uneven playing field between moneyed people vis-a-vis persons with scant resources with the result that the latter are alienated from the political system and deprived of their right to participate in the governance of the country. Most parties and candidates do not even observe these ceilings and incur election expenses far above the prescribed limit.

The lawyers representing “traditional parties” and their staunch opponent, Pakistan Tahreek-i-Insaf (PTI), claiming to be a symbol of change, opposed the radical views of the petitioners, though they agreed on “reform” agenda as usual. For example, the counsel of PTI countering the argument of petitioners that “car rallies also qualify as display of wealth,” submitted that his party “does not oppose car rallies, but agrees with the petitioners that the political parties should not use expensive cars, which qualify as display of wealth and substantially enhance the expenditure incurred by the candidates.” Now in the election campaigns, all the parties including PTI are using “expensive cars” for their leaders.

The petitioners also contended that State and private TV channels must not televise or broadcast programmes mentioning specific candidates and should not give coverage-negative or favourable-to any of the candidates by name or by obvious reference. This privilege, they believe, can only be availed by wealthier political parties and candidates, and is an advantage that compromises the rights of the petitioners. The counsel for Muttahida Qaumi Movement (MQM) opposed it on the plea that it would violate freedom of press. Media is presently being exploited by political parties spending millions, and there is no check whether such expending would affect the voters’ opinion-creating a tilt negatively or positively towards a particular party and/or candidate. Like other mature democracies, there should be election debates among heads of parties on crucial issues rather than individual projection of leaders.

The Court, after hearing the arguments of all the major parties concluded that “Constitution provides a comprehensive mechanism to ensure… that elections are conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against.” Emphasising the need for door-to-to campaign to avoid vulgar ostentation of wealth, the apex court observed that “there is unanimity of view on various suggested courses of action. Therefore, we direct the Election Commission to frame rules and issue instructions to provide a legal sanction to these measures, namely, door-to-door campaign, manifesto, canvassing on State television and radio, and candidate-voter interaction/debates, etc, as appropriate and implement the same to achieve the ultimate objective of fair, free, just and honest election.” This was way back in June 2012 and now in April 2013 everyone is complaining that Commission has done ‘too little” or “nothing” to comply with the orders of Supreme Court.

In five years no serious effort was made by any quarter on the issue of computerised balloting. During the hearing of the case it was submitted that in India which has a much larger voting population, computerized balloting system was in vogue. In this regard, they also presented a report drafted by PILDAT (Pakistan Institute of Legislative Development and Transparency) that has identified and recommended the relevant authorities to implement the system of computerized balloting in Pakistan. PTI also pleaded that electronic voting should be introduced through Electronic Voting Machines (EVMs). The Commission was asked to commence work on this issue, but nothing has happened so far.

Fair and free elections are sine qua non for democratic process. For the next term, let the people decide by whom they want to be represented. On the issue of extremely low turnout in election, which is a no-confidence of majority on the existing system, the Supreme Court discussed the idea of compulsory voting. It cited the example of State of Georgia which in 1777 enacted legislation to make voting compulsory and directed that “every person absenting himself from an election, and shall neglect to give in his or their ballot at such election, shall be subject to a penalty not exceeding five pounds; the mode of recovery and also the appropriation thereof, to be pointed out and directed by act of the legislature: Provided, nevertheless, that a reasonable excuse shall be admitted.”

In Austria, compulsory voting was partially introduced in 1929 but extended to parliamentary elections in 1949. Netherlands also introduced compulsory voting in 1917 along with Spain, Venezuela and Chile. Congo, Brazil and Argentina have also made voting compulsory for citizens between 18 and 70 years old. In primaries, citizens under 70 years of age may refuse to vote, if they formally express their decision to the electoral authorities, at least 48 hours before the election. Ecuador has adopted a form of compulsory voting, which makes it obligatory on citizens between 18 and 65 years to vote in elections. In Singapore, voting is compulsory for citizens aged above 21 years on the 1st of January of the year of election. Non-voters are removed from the electoral register until they reapply, providing a reason for their abstention. Peru and Uruguay have also adopted compulsory voting to ensure that their democratic mandate is sufficiently and successfully met.

Some jurisdictions impose sanctions against individuals who violate the law by failing to vote. They, however, before levying a sanction, require the non-voting citizen to provide legitimate reasons for his/her abstention from voting, if any exist. These sanctions have taken different forms. Countries have also impressed fines against non-voters. The amount varies in different countries, eg, 3 Swiss Francs in Switzerland, 200 Cyprus Pounds in Cyprus, 10-20 Argentinean Pesos in Argentina, 20 Soles in Peru, etc.

A non-voting citizen may also face imprisonment as a sanction. In cases where such a person refuses to pay the fine despite being reminded to do so, the courts impose a prison sentence. Countries like Belgium disenfranchise voters who fail to vote in elections consecutively for 15 years.

In Singapore, the voter is removed from the voter register until he/she reapplies to be included and submits a legitimate reason for not having voted. In Peru the voter has to carry a stamped voting card for a number of months after the election as a proof of having voted. This stamp is required in order to obtain some services and goods from some public offices.

In Bolivia, the voter is given a card when he/she has voted so that he/she can prove participation. The voter would not be able to receive his/her salary from the bank if he/she cannot show the proof of voting during three months after the election. Australia introduced compulsory enrolment and voting in 1924, for both State and national elections. Some states have made voting in local council elections compulsory as well. Eligible voters who remain absent from the polling stations are liable to pay fines of 20-50 Australian Dollars and may also face imprisonment in case of non-payment of fines.

The Court in this case has aptly pointed out that it is a constitutional imperative that a democratic government be established and nurtured in. Therefore, the Election Commission is obliged to ensure that all elections witness a substantial participation of the electorate. By making voting compulsory and attaching sanctions for its violation, the Election Commission and/or the appropriate body can resolve a long standing problem, and bring existing election-related processes in line with the dictates of the Constitution.

Therefore, all necessary steps must be taken to make voting compulsory in Pakistan as early as possible. This initiative would have the effect of strengthening democracy by giving effect to the constitutional mandate that the Government shall be run by the chosen representatives.

Article 3 of 1973 Constitution of Islamic Republic of Pakistan says that “The State shall ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability to each according to his work.” Since 1973, we have this promise-lying dormant and now almost dead-in the supreme law of the land.

Tragically, all the economic policies adopted by military and civilian rules alike since the insertion of this principle in the Constitution have been diametrically opposite; promoting, protecting and cementing the interests of the exploitative classes. This Land of the Pure has, undoubtedly, nurtured an extremely exploitative socio-economic system, which has gained strength over the passage of time.

All kinds of repressions-especially the influence of clergy in all spheres of life-coupled with cruellest means of economic exploitation by the ruling elites are denying citizens the right to live, what to talk of fulfilling the promise, “from each according to his ability to each according to his work”.

The slogan ‘From each according to his ability, to each according to his needs’, though had its roots in the New Testament [4:32-35], was popularised by Karl Marx in his 1875 Critique of the Gotha Program. The phrase enunciates the principles that, under an ideal system, every person should contribute to society to the best of his or her ability and consume from society in proportion to his or her needs. Fusing this Marxist ideology into “Islamic Socialism”, Zulfikar Ali Bhutto in the early part of his politics-later he became an instrument in the hands of ruling classes-promised in the Constitution, “from each according to his ability to each according to his work.”

In fact, he borrowed it from the then Soviet Union. Lenin modified Marx’s assertion pleading that in the early stage of revolution (transition from socialism to communism) it would be “From each according to his ability, to each according to his work (labour investment).

Obviously, Karl Marx had specific conditions in mind for such a creed to work-a society where technology and social organisation had substantially eliminated the need for physical labour in the production of things, where “labour has become not only a means of life but life’s prime want.” Marx explained his belief that, in such a society, each person would be motivated to work for the good of society despite the absence of a social mechanism compelling them to work, because work would have become a pleasurable and creative activity. Marx intended the initial part of his slogan, “from each according to his ability” to suggest not merely that each person should work as hard as they can, but that each person should best develop their particular talents.

Our students at LUMS usually inquire: “Is Constitutional command of gradual elimination of all forms of exploitation legally enforceable”? Many think naively that this goal can be achieved by filing a petition in Supreme Court or going to fight elections under the umbrella of political parties.

The apex Court failed to get its decisions implemented on sugar and petroleum prices, the government openly defied NRO decision and no politician or senior army officer is prosecuted till today by any local courts on charges of corruption. In Pakistan independence of judiciary and rule of law are just myths.

There is no political will to implement Article 3 that was inserted in 70s when Marxist slogan-mongering could enlarge the vote bank-the framers of Constitution were fusing Islam with Socialism as part of political strategy. They were not at all sincere in creating a just society free of exploitation. Even the Soviet leaders established party dictatorship that usurped the rights of proletariat in whose name they came into power. Revolutionary ideology of any era-religious or secular-is always hijacked by the vested interests.

As soon as the vested interests sniff their defeat, they adopt “the ideology of the time” and soon corrupt it for their advantage. So it hardly matters that Article 3 of our Constitution-a remnant of great leftist movement for equality and social justice-is still there. It is no more than a dead log-though our Supreme Court keeps on reminding us that Constitution is a living and vibrant document!

All State organs protect the interests of the ruling classes and judiciary is no exception. The Anglo-Saxon law that our judiciary practices and protects guarantees private property, concentration of wealth and exploitation of the have-nots. Judiciary is not a revolutionary organ; it is a product of existing exploitative socio-economic system. It is unfair to demand from this organ of the State any revolutionary change.

It is tragic that in a country where billions of rupees are made on a daily basis by the rich and mighty, tax-to-GDP ratio is below 10 percent and the poor get nothing from whatever collected.

The powerful and the corrupt are least bothered to pay taxes. They keep assets in the name of others (banami), mint money through corruption, extend free hand to themselves and others to launder money, evade tax and whiten as much funds as they want through section 114(3) of the Income Tax Ordinance, 2001 and other amnesty schemes announced from time to time. In this scenario, how Supreme Court and others are talking of “democratic dispensation” through elections alone without economic justice and accountability of the rich and mighty.

The mighty sections of society, engaged in money-whitening transactions, are spending millions on elections. Constitution is just a piece of paper for them. The unholy anti-people alliance controls and enjoys 90% the State resources. Thus, it will be living in Fool’s Paradise to expect from them true democratic polity and implementation of Article 3 of Constitution.

For implementation of Article 3 of the Constitution, we need a revolutionary, mass-based political party that can win the mandate to change the existing economic system, which is highly unjust and oppressive. It protects establishment and exploitative classes that have monopoly over economic resources. Take the issue of taxes. At the moment the privileged classes are not paying taxes according to their ability.

On the contrary, the vast majority of the poor is paying exorbitant indirect taxes even on essential commodities of everyday use. What election reforms are we talking and discussing? The dispossessed are asked to vote for the exploiters and do not ask for their fundamental rights guaranteed under the Constitution-the supreme law of the land. This is mockery of democracy and constitution.

Making Pakistan a State in consonance with the principle embodied in Article 3 requires political struggle under a mass-based front having the support of progressive forces, media and civil society. Such campaign alone can guarantee equitable distribution of wealth and resources as envisaged in the Constitution. In the coming election, scheduled for May 11, 2013 can we dream of such a change?

(The writers, tax lawyers, are Adjunct Faculty at Lahore University of Management Sciences (LUMS))

Huzaima Bukhari and Dr. Ikramul Haq, "In search of true representation," Business recorder. 2013-04-05.